Religious Liberty?

Alexandria, VA. Vast and even incalculable quantities of ink have already been spilled over the issue of the HHS mandate that religious organizations purchase contraception as part of their compliance with the Obama health care plan. It would seem that little remains to be said.

I have read and pondered this issue as it has unfolded. I have signed a document, with many other scholars, objecting to the recent “compromise” on the grounds that it does not resolve the basic issue of forcing a religious institution to provide a service that is incompatible with its doctrine and belief. I am largely in agreement that this issue represents a profound and disturbing encroachment upon the internal ordering of religious organizations.

However, I am disquieted by the way in which the issue has largely been framed – not only by the Left, but perhaps more by the Right. The Right has sought to defend “religious liberty” on the grounds that the HHS mandate would represent an abrogation of the First Amendment’s right to “free exercise” and that it would violate the “conscience” of religious adherents. By these appeals to the “rights” of religious organizations to hold certain religious beliefs – whatever those may be – and by an appeal to “conscience” informing that belief – no matter what it may hold – critics of the HHS policy have framed their response in the dominant privatistic language of liberalism. Their defense rests on the inscrutability and sanctity of private religious belief. It borrows strongly from sources of private religious devotion that lays no claim to public witness, in keeping with liberalism’s dominant mode of allowing acceptable religious practice so long as it remains outside the public square. The appeal to conscience, while lodged at the level of institutional belief, subjects itself easily to the same claim by adherents within that religious order who might similarly object to a religious mandate (e.g., the prohibition on artificial birth control) on grounds of “conscience” to aspects of that belief (think Martin Luther. Or Andrew Sullivan.). The public response of critics of the mandate essentially cede to liberalism most of the ground that they would need to mount a serious case against the individualizing, relativizing and subjective claims that lie at the heart of the mandate and, more broadly, liberalism itself.

More than a few commentators have noted that this issue seems particularly oriented toward and at the Catholic Church. While some wags have questioned why other religious traditions don’t seem to have a problem with other aspects of the mandate (e.g., Christian Scientists haven’t risen up in objection to coverage of blood transfusions), frank speech requires acknowledgement of a more fundamental truth: from its earliest articulation, liberalism has set its sights on the rout of Catholic Christendom. Liberalism was fundamentally animated by a deep philosophical and theological objection to Catholicism – and, until recent times, vice-versa. Debate over the HHS mandate should be understood in its broadest context: the longstanding effort to wholly remake society in the image and likeness of liberal philosophy. That philosophy holds at its core that humans are by nature free, autonomous and independent, bound only by positive law that seeks to regulate physical behavior that results in physical harm to others (and, increasingly, selves). Liberal people should not be bound by any limitation upon their natural freedom that does not cause harm (mainly physical harm) to another human; otherwise, the State should be indifferent (“neutral”) to any claims regarding the nature of the “the Good.” Liberalism seeks to secure legal structures governing “Right” – procedures ensuring fairness with an aim to protecting (and expanding) the sphere of individual liberty while balancing claims regarding the “harms” of some individual practices (e.g., liberalism seeks to limit some harmful activities of the market at the edges while leaving its basic structure intact).

Liberalism understood from the outset that it could not abide any religious tradition that sought to influence the order of society based upon its conception of “the Good.” “Private” belief could be tolerated: such belief would extend only to the immediate adherents of that faith; its adherents had to personally choose their allegiance to that faith; and any faith commitment would be the result of voluntarist choice and thus, a chosen self-limitation on the part of the faithful. Famously in his “Letter Concerning Toleration,” John Locke refused to extend toleration practically to only one faith – Catholicism. His claim was that toleration could not be extended to any faith that acknowledged a “foreign potentate,” which, for all practical purposes, meant the Pope. But, it requires a peculiar set of assumptions to conclude that the Pope is a “foreign potentate” – while the Pope does not claim political rule over Catholics, the Pope is the final arbiter of doctrine that is to govern not only the private behavior of Catholics, but their role and witness in the world. It is no coincidence that many of the cases involving “religious liberty” now involve Catholics, inasmuch as Catholics have erected worldly institutions in the effort to live out the witness of their faith – schools, universities, hospitals, charities, and the like. The Catholic faith is, by definition, not “private”; it involves a conception of the human Good that in turn requires efforts to instantiate that understanding in the world. As such, Catholics represent a threat to the liberal order, which demands that people check their faith at the door and acknowledge only one sovereign in the realm of proscribing public behavior – the State.

Catholics begin with a fundamentally different understanding of the human person than liberalism. We are not by nature “free and independent”; we are, rather, members of the Body of Christ. In the natural law understanding, we are by nature “political and social animals” (so states Aquinas, following and amending Aristotle), requiring law, culture and religion for our flourishing and right ordering. The law does not simply seek to regulate and prevent bodies from committing harm; rather, the law necessarily derives from, and seeks to advance, a positive vision of human good and human flourishing. The law reinforces the Divine law, seeking the restraint not only of practices that will harm others, but which will tend toward a condition of sin and self-destruction. Even where the law is “silent,” we are not at leave simply to act as we wish; rather, we are admonished to live in accordance with and by the practice of virtue necessary to human flourishing. A polity based upon securing “the Right” is radically insufficient; rather, the polity is understood to be a reinforcement of efforts to orient people toward “the Good.” While the Church and State necessarily operate in different spheres, the State’s activities are oriented by the vision “the Good” articulated by Church and God’s word.

Critics of the HHS mandate have framed their responses to the mandate within liberal terms. This is doubtless a requirement and necessity in contemporary liberal society – to gain a hearing at the table of public opinion, and especially the Courts, arguments must be framed in dominantly liberal terms. Thus, critics of the Mandate have sought to craft their response by claiming that the Church’s internal beliefs will be violated by the Mandate, that the Mandate represents an encroachment upon “conscience.” Critics of the Mandate thus downplay and even ignore the content of the belief in question; they rally around the protections of conscience, claiming a sphere toward which the State should manifest indifference, in which they should not meddle. The nature of the belief is largely irrelevant for the sake of the claim. Many of the Mandate’s critics (especially non-Catholics) claim that they regard the Church’s view on birth-control to be somewhat batty, but that fact is irrelevant to the Constitutional issue protecting private institutional conscience and free-exercise. Catholic critics don’t depart much, at all, from this same argument.*

Catholic as well as non-Catholic defenders have largely sought to hold at arms length any claims about the rightness or truth of the Church’s teachings on birth control: these are to be treated as belief within a “black box” that should be ignored by liberal society. As long as those crazy beliefs don’t harm individuals within or beyond the faith tradition, then they should be accorded respect and indifference by the State. The Church seeks the leave of the State on the only terms recognizable by the liberal state: we have a certain set of private beliefs that aren’t harming anyone. Leave us alone, and we’ll be quiet.

However, everyone is aware, even if dimly, of the real issue, though few explicitly raise the matter. The Church does not seek to propound its teachings as a matter of internal belief solely for its faith adherents: it claims that its teachings are true as a matter of human good. The teachings regarding birth control are not simply a peculiar faith tradition that is thought to apply to adherents of Catholicism; it is a teaching that Catholicism hopes and intends to be adopted by all people, regardless of their faith tradition. The strictures concerning birth control are not propounded as a “faith-based” peculiarity applicable only to Catholics, like Jewish dietary laws, but as a considered position concerning the Church’s deepest understanding of the human good – one that can be, and has been, framed in terms that are intended to be accessible and persuasive to non-Catholics. Among other reasons offered, the adoption of a birth control concerns a practice that Catholicism has understood to entail profound social consequences that, when widely practiced, leads to profoundly damaging social practices.

The Church’s argument – made at a time when it was believed by many that the Church had no choice but to update itself to be relevant to changing times – was articulated forcefully by Pope Paul VI in his 1968 encyclical “Humanae Vitae,” and is addressed not only to Catholics, but to “all men of good will.” As nicely summarized recently by Brendan Patrick Dougherty and Pascal Emmanuel-Gobry, Humanae Vitae articulated four discrete areas of social and political concern that they believed would become manifest with the widespread use of birth control:

1. General lowering of moral standards

2. A rise in infidelity, and illegitimacy

3. The reduction of women to objects used to satisfy men

4. Government coercion in reproductive matters

The first three – unarguably evident in our time – concern the social implications of transforming sexuality from its intimate and natural link to reproduction to a “recreational,” hedonic activity. The Church understood that the cumulative decisions of individuals – not intended to “harm” anyone – would nevertheless lead to manifest and extensive social ills. Liberalism begins and ends with the view that individual choice is paramount, and social costs can and should be redressed by government alone, leaving as much latitude possible to individual satisfaction of desire; Catholicism (echoing Aristotle) holds that society is an intricately woven fabric in which autonomous actions aimed at the satisfaction of individual desire will often prove destructive of that fabric. The Church holds this to be the case in all realms of human activitiy – sexual as well as economic, a point that is too often missed by American Catholics who allow their partisan identities to define their understanding of their faith (are those who oppose abortion and pornography any less “Social Justice Catholics”?). Liberalism holds that the State must be indifferent to the personal choices of individuals; Catholicism holds certain choices not only to be inherently wrong (even if they do not result in the immediate and evident harm of others), but, over time and cumulatively, socially destructive.

The last area of concern is perhaps even more difficult to grasp in an intuitive fashion than the first three. The last claims that the widespread adoption of birth control will eventually entail government coercion in support of its use. The Church understood – long before this tendency became evident – that liberalism was finally incapable of “indifference” toward the choices of individuals, particularly when those choices involved the limitation of individual autonomy, and particularly when any such limitation occurred in the context not of organizations that stressed individual choice, but rather asserted the preeminence of conceptions of the Good that commended practices of self-limitation. In short, liberalism would finally reveal its “partiality” toward autonomy by forcing institutions with an opposing worldview to conform to liberalism’s assumptions. Liberalism would seek actively to “liberate” individuals from oppressive structures, even at the point of requiring such liberalism at the point of a legal mandate and even a gun.

The response of American Catholics to the HHS mandate has (perhaps necessarily) been framed in dominantly liberal terms that give it a chance of receiving a hearing in today’s public sphere and within its Courts. But it should be acknowledged (as the response to the “Compromise” reveals) that the Church will ultimately lose the argument simply due to the fact that the way it is framed already represents a capitulation to liberal premises. Doubtless, an argument that stated more explicitly the Church’s opposition to birth control would be even more quickly dismissed (but, first, caricatured and mocked) than the current invocation of “religious freedom.” But, the real debate is not over religious freedom, in fact: it is over the very nature of humanity and the way in which we order our polities and societies. Catholicism is one of the few remaining voices of principle and depth that can articulate an forceful and learned alternative to today’s dominant liberal worldview. That it truncates those arguments for the sake of prudential engagement in a contemporary skirmish should not shroud the nature of the deeper conflict. That conflict will continue apace, and Catholics do themselves no favors if they do not understand the true nature of the battle, and the fact that current arguments aid and abet their opponent.

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*See, for instance, an interview in today’s Washington Post with William Thierfelder, President of Belmont Abbey College, in which he states “We’re not trying to tell anybody else how to live their lives. I, personally, I would hope people don’t seek abortions, but we’re not saying that. We’re being asked to violate our religious beliefs in our Catholic home.” If this is the case, then my response is similar to Flannery O’Connor’s retort to the fashionable notion that the transubstantiated host was merely a symbol: “The hell with it!”

My thoughts exactly. It is sadly amusing that the Catholic Bishops think that appealing to the very enlightenment liberalism that caused this problem is the “solution.” After all Justice Scalia has made a living doing this.

I wonder how much of this has to do with the co-option of many in the Catholic Church in the US into “conservatism” (i.e. right liberalism)? Instead of working outside the system by BEING the Church, too many play within it and ally themselves with one side or the other when this only compromises them — turning the Church into a sort of deracinated Catholicism that is more akin to a domesticated Protestant denomination.

Speaking of domestication, if Talal Asad and William Cavanaugh are right, the very idea of religion as a private and personal affair, rather than as a tradition that governs the way a people live, is a social construct intended to marginalize non-liberal ways of living. Appealing to “conscience” and “freedom of religion” only turns Catholicism into a species under the genus of “religion,” thereby marginalizing the Church by appealing to the state as the rightful arbiter and guarantor of society. To do so is to implicitly acknowledge and affirm the state’s superiority to the Church. It is a grave compromise.

In a meek defense of liberalism, though, shouldn’t it be noted that the liberal state did not, finally, reveal its partiality in this case? That is, as I understand ‘the compromise’, forcing insurance providers to grant access to contraceptives basically exempted the Church from being required to participate in the violation of its own teachings.

In other words, if liberalism were to reveal its partiality in this case, one might’ve expected the liberal state to force the Church to comply with the ‘liberating’ law, thus violating the state’s own liberal dictums that should’ve guaranteed the Church’s ‘black box’ autonomy. Such coercion, one might expect, would reveal the state’s (liberalism’s) ultimate partiality. But that’s not what happened. The Church was not forced to comply, and the law was rewritten to secure the Church’s access to free exercise. So, didn’t the liberal state behave rather impartially, falsifying the original theory?

Unless, of course, the claim is that state is still coercing, in some more subtle way, the Church’s complicity. Perhaps this is the ‘lack of resolution’ referred to the second paragraph.

Something I haven’t seen anyone really say about this controversy is that it’s less about “conscience” and “religious liberty” than it is about the question “What is health?” (and by extension, “What is healthcare?”).

The Catholic Church–because of the natural law tenets it carries–holds that contraception is not a matter of “health.” The liberal American consensus has decided it is. I think any honest observer–even one who supports and/or uses birth control–must admit that the Church is right, but the matter is now too fraught with ideology for that to happen.

This will continue to become a bigger issue with government intrusion into healthcare policy: What is health and what isn’t? The only “right” answer will be the government’s.

Overall, good article (definition of the real issue was excellent). But:

“The appeal to conscience, while lodged at the level of institutional belief, subjects itself easily to the same claim by adherents within that religious order who might similarly object to a religious mandate (e.g., the prohibition on artificial birth control) on grounds of “conscience” to aspects of that belief.”

Adherents is a funny word to describe those who object to teachings of the religious order they claim to be adhering to. I’m sympathetic to a general critique of the Church’s relationship to the modern world, but this is bogus. Honest question: do you think the Church should have had Luther killed after the 95 Theses?

The Church is a non-liberal institution in a liberal society. I see no problem with the Church pointing out that society is violating its own principles. You think doing so will prevent it from, say, excommunicating a dissident who claims denying “abortion rights” violates his conscience? I think that is just logically wrong. But more critically, do you deny that an individual is bound to follow his conscience? I don’t dispute that the Church can decide the individual is wrong, and do as it sees fit. But I will be called before my Creator for judgment one day, and as He has written the law on my heart, I have little excuse for ignoring it. Obviously if my conscience is telling me contraception is a great thing, the self-indulgent nature of the difference between it and Church teaching teaching should give me pause. Cui bono is a very important question for the conscience when it diverges. Also, the Church does quite an impressive job showing its work, so if you’re going to disagree, you better be able to show yours to the Judge.

“Critics of the Mandate thus downplay and even ignore the content of the belief in question… Catholic as well as non-Catholic defenders have largely sought to hold at arms length any claims about the rightness or truth of the Church’s teachings on birth control”

It’s not hard to find excellent arguments. What we have here is NOT just a failure to communicate (as you acknowledge elsewhere). Again, more so than any liberal institution, the Church shows its work. Also, “Leave us alone and we’ll be quiet” is a little unfair. We could be louder, and certainly should be, but I don’t think we’re promising to be quiet by arguing with liberals on their own terms.

“the real debate is not over religious freedom, in fact: it is over the very nature of humanity and the way in which we order our polities and societies.”

This debate is over for in world. The opposing sides can no longer communicate. Eventually this will mean a return to the catacombs for the faithful.

Mr. Schroeder,
The Church could once purchase insurance for it’s employee’s that did not cover contraception, and now it cannot. Only a coward would accept this as an impartial compromise. It can stop purchasing health insurance for employees, and get fined.

JA,
While the near realization of Walker Percy’s American Catholic Church is a tragedy, I don’t think it’s responsible for the liberal language. There is no other available for legal matters in this country.

But it should be acknowledged (as the response to the “Compromise” reveals) that the Church will ultimately lose the argument simply due to the fact that the way it is framed already represents a capitulation to liberal premises.

An excellent conclusion, Patrick, the truth of which is clearly revealed by the confusion and disagreement which has greeted the Obama administration’s revision of its mandate. For a large majority of observers, the compromise takes away from Catholic institutions any direct violation of their conscience, meaning that the problem is resolved. For the Republican leadership, not willing to let a good culture war argument slip away, the problem is that Obama’s decision is still violating conscience, even if indirectly–meaning that the preferred solution is to strengthen further conscience-based objections to government mandates! It’s individualism all around. The argument for a collective good is barely heard. As a non-Catholic who, like you, worries about the ability of communities to articulate their own meaning for the world, I’d still like to see that argument made; I’d like to see a liberal state that purposefully chose to carefully, coherently, and expressly promote a non-Catholic good (which, in the case of birth control, it most certainly would), rather than the one we have, which hurriedly responded to whining about conscience by continuing in its ((un)intentional?) emasculating of it.

Well contraception is such a monumentally disastrous Darwinian strategy bearing its fruit all over the developed world, true Catholics will just have to wait a generation or so longer and they will inherit the Earth (or, rather, the Muslims who actually practice what they preach will).

As usual, Prof. Deneen provides us a fantastic and important essay that challenges the assumptions of our everyday life in small “l” liberal America.

Additionally, American Catholics would do well to grapple with understanding the issues that arose in Mirari Vos (On Liberalism and Religious Indifferentism), the Syllabus of Errors, and Leo XIII’s condemnation of Americanism. These must be read and understood along with Council’s Declaration on Religious Freedom in light of Pope Benedict XVI’s exhortation to read such documents without discounting the historical understanding of the Church.

Even though I’m an Evangelical and not a Catholic, I think you’re exactly right about the much deeper nature of the real conflict. In theory, it seems to me, liberalism is pluralistic, with a wide variety of claims to the good competing openly and fairly in the public arena. In practice, it seems like it’s becoming actively and specifically secular, with its own claim that individual autonomy is the ultimate good operating from a privileged perspective. Nevertheless, it seems to me that the constitution clearly endorses the first view (pluralism) rather than the second (secularism), and hence when our society fails to live by its own rules, it’s worthwhile for the bishops (and their separated Evangelical brethren, not to mention Muslims and Jews) to point that out. This is, as you say, a tactic of born of prudence rather than a strategy reflecting our deepest convictions, but it’s still a reasonable point for all that.

I’m an atheist who thinks the contraceptive mandate is overreaching. But beyond that case, I really don’t see evidence that “allowing acceptable religious practice so long as it remains outside the public square” is a fair characterization of the situation in general.

Not wanting the government to endorse specific classes of religious practice or expression isn’t the same as outlawing all but private religious expression.

Well, let’s assume Deneen is correct. How ought the Church go about opposing the mandate?

There are relatively solid arguments that the mandate violates the First Amendment and RFRA. Should the Church forgo these arguments in favor of an all out “promoting contraception is violative of the nature of the human person and consequently contrary to the common good” argument? At the end of the day, this is what the Church believes, but can it realistically hope to win this battle on that point in today’s society?

I don’t see how the Church’s previous ‘right’ to purchase insurance that did not cover contraception was an aspect of the Church’s right to free expression. That is, the Church may have the right not to purchase contraception itself, but it never had the right to force its employees to be or behave as Catholics. I expect there’s loads of case law to this effect, as well.

To the extent that the Church is required to purchase insurance for its employees, this requirement is no different from any other requirement universally required of employers. Suppose you adhered to a religion of which an essential element included the right to not to insure your employees at all. In a sense, healthcare reform would violate your right to free exercise, but that sort of violation would not seem to reveal the state’s partisanship to anything other than mandatory obedience to the laws we all agree to when we agree to live in this society. If this is what is meant by ‘liberalism’s partisanship’, then the thesis of the piece is pretty trite. However, I do not take Dr Deneen to be arguing for something trite, and therefore, I do not take him to be argue what you appear to think he is arguing for.

Oh, and how my arriving at this conclusion should brand me ‘a coward’ remains an open question. Nice use of ad hominem in what was an attempt at civil discussion, though. Way to ruin it for everyone.

Aaron writes: “That is, the Church may have the right not to purchase contraception itself, but it never had the right to force its employees to be or behave as Catholics.”

The employees have the right to purchase or not purchase contraception, but they shouldn’t have the right to force the Church to be or behave like them.

But more to the point. At my own university, Baylor, tenured faculty members have been dismissed because of moral turpitude that involved consensual acts with non-students. I know that other institutions, such as BYU, Wheaton, Biola, and Pepperdine, have dismissed tenured faculty on similar grounds. These schools, like Baylor, also forbid the viewing of pornography in residential halls, even on computers owned by the schools. And, come to think of it, BYU, consistent with its moral theology, bans the drinking of caffeinated beverages on campus.

I know of no important body of “case law” arising from these policies and their application.

Aaron writes: “Suppose you adhered to a religion of which an essential element included the right to not to insure your employees at all.”

But why not suggest a horrible consequence performed by the government: “Suppose the Secretary of HHS declares that an essential element of `preventative care’ is `abortion on demand’ or providing economic incentives for women pregnant with Down Syndrome children to have abortions because of the `unfair’ cost burden that such children place on our health care system.” Because “cost reduction” is the defense the President offered for “free” contraception, it does not take much imagination to extend that defense to make other requirements on employers and individuals.

Aaron writes: “Suppose you adhered to a religion of which an essential element included the right to not to insure your employees at all. In a sense, healthcare reform would violate your right to free exercise, but that sort of violation would not seem to reveal the state’s partisanship to anything other than mandatory obedience to the laws we all agree to when we agree to live in this society.”

Again, let’s try something else:

Suppose you adhered to a religion of which an essential element included the belief that human sexuality had an intrinsic purpose that was tethered to its view of the dignity of man. In a sense, a law that required you to materially cooperate with practices that violated that belief would violate your right to free exercise, but that sort of violation would not seem to reveal the state’s partisanship to anything other than mandatory obedience to the laws we all agree to when we agree to live in this society.

Here’s another:
Suppose you adhered to a religion of which an essential element included the belief that post-viable unborn children were full persons. In a sense, a law that required you, a health care worker, to participate in the killing of such children would violate your right to free exercise, but that sort of violation would not seem to reveal the state’s partisanship to anything other than mandatory obedience to the laws we all agree to when we agree to live in this society.

I can go on. But I am sure you see the point. No matter what one puts in for the “essential element,” free exercise will never trump “mandatory obedience to the laws we all agree to when we agree to live in this society.”

You see, liberalism, as Patrick eloquently shows, is a jealous god, and will have no other gods before it.

I am a Christian of the Protestant idiom; however, over the course of my adult life, the Holy Spirit has been inexorably moving me toward orthodoxy with a little “o” and the catholic with a little “c.” If and when those become capitals remains to be seen; yet, I have become aware of the Gnostic decay in Protestantism and with its commensurate accommodations with the state, particularly after the Westphalian Peace. The familial dynasties which would ultimately morph into the nascent Hobbesian state in its nationalist guise used Protestantism as a means to emancipate themselves from the authority of the Kaiser and from that of the Pope. In the 16th century, Flavio Biondo introduces a secularized version of Joachim of Fiori’s Realm of the Father, from Abraham to Christ Realm of the Son from Christ to his own time to 1260, at which time Fiori postulates the Realm of the Holy Spirit would be ushered in. Untimately, Biondo’s secularized version of Fiori’s still “Christian” abstraction based on the Trinity would coalesce into the anti-Catholic divisions of history which we now have: Antiquity = good, Medieval (Catholic) = bad, Mondernity = good. This triad of history became ever more secular and ever more anti-Christian. August Comte picked up the theme with his Era of the Theological, Era of the Metaphysical and Era of the Positive Scientific, the latter being the Apex of progress for him. Hegel picked up the theme with his Epoch of Oriental Absolutism in which only one was truly free; Epoch of the Aristocracy in which only a few were free; and his Era of the Modern in which all are free. Schelling, pacing the phenomenon again in a pseudo-Christian context spoke of the Era of Peter (Catholic), the Era of Paul (Protestant) and the coming Era of John (who knows).

When one speaks of the three German Reichs (realms or empires), one usually thinks of that Reich from 800 A.D. to 1806 at the first, that from 1871-1918 as the second, and that from 1933 to 1945 at the third. Yet, Nazi ideologues and “philosophers” saw their Third Reich as a manifestation of all of those other “Third Realms” which I have mentioned.

All of these abstract “thirds” from Fiori through Schelling have one thing in common: they transcend and are superior to the Second Realm associated with Christ and His Church.

The article is excellent and has brought me to think even more about moving from “o” to “O” or from “c” to “C.”

1. The Church needs to remember the freedom that has been all but forgotten, but Tocqueville had it firmly in mind, and so did Pope Leo XIII. That is the Freedom of Association. That means not simply that individuals have the right to visit other individuals to play pinocchle. It means that a free people will embrace free associations as central to the attainment of the common good, and as absolutely necessary for the fulfillment of the social nature of man. Anyone who believes in freedom would find it obnoxious in the extreme, if one should attempt to compel free associations to hew to a set of regulations handed down from on high — for instance, to compel the Kiwanis to admit women, or the Boy Scouts to commit hara-kiri and embrace homosexual scoutmasters. Our Church leaders should understand that they are defending not simply freedom of conscience and freedom of religion, but freedom of association.

2. Contraception is not preventive of anything but a child, and, at that, considering the total effects and not limiting one’s vision to a particular instance, it is a flagrant failure. Preventive medicine must medicate, or guard against disease. The Pill does not cure a disease, does not restore healthy function to any limb or organ, does not soothe pain, and does not palliate any debility. It does not, unlike an inoculation, shield against contracting a communicable disease, like tuberculosis. If John and Mary cannot conceive a child after years of marriage, then there may be something to remedy there, some need for medicine. That’s a debility. But if John and Mary use their reproductive organs in a reproductive way and it results in reproduction, that is but the predictable and perfectly healthy result of what they have done.

3. The reason why many of the “contraceptives” are now abortifacient is that the manufacturers understand the risks associated with the damned things in the first place. If estrogen were like vitamin C, it wouldn’t matter how much one took; but it is a growth hormone, and, shazzam! growth hormones tend to produce growths. They produce natural growths in breast tissue and so forth when a woman is going to give birth. But flooding the body with estrogen, trying to fool it into being perpetually pregnant, is on the same order as a man’s flooding his body with testosterone, trying to fool it into building extra muscle. Some of the things that some people will grow thereby will be cancerous.

4. Women would be healthier, take it all in all, if the sexual revolution had never occurred; and the sexual revolution is inconceivable without the Pill. They would be far less likely to be the victims of violence (because they would not be living with a series of boyfriends). They would be exposed at worst to the one or two venereal diseases we used to have, rather than our current thirty. There would never have been the “mysterious” spike in breast cancers circa 1970. I could go on with this — but the “medical” justification for the Pill is complete nonsense — taking the culture as a whole.

5. This is what I do for a living: I study literature, philosophy, and theology spanning 3000 years. My Church is 2000 years old, almost 4000 years if we go back to Father Abraham. We’ve seen a lot of things come and go. For us, the new certainties about sexual autonomy are but a fad of the day before yesterday.

But now could you please go over to Word On Fire and explain all of this to Father Barron? He is an extremely talented evangelist with a growing following. He makes 8 minute Youtube videos defending the Catholic faith.

To my disappointment (as he is great) his latest video he defended Catholics precisely on the basis of the Founder’s rendition of liberalism.

Great article. I echo many of the same thoughts in my piece (you may not believe it if you read it, as it is so similar–though I bring in Rieff–but I did write it before Deneen published his!), “Religious Liberty and the Triumph of the Therapeutic,” going up Friday morning at Ethika Politika, here: http://www.cfmpl.org/blog/

Here’s a sample:

When Catholics argue merely for their right to religious practice, that argument is necessarily heard by other Americans in Lockean terms, in which “every religion is orthodox to itself,” and in which the sole power and authority over all matters pertaining to the things of this world is the secular state. Religion is, by this definition, strictly otherworldly, and there is no non-subjectivist way of knowing the truth of religious dogma or judging between conflicting doctrines and practices. In other words, religious relativism is the official lens through which all judgments on the proper bounds of church and state are made in America—ab initio, as William Cavanaugh, has recently argued. If religion is private, idiosyncratic, and otherworldly, not public, truth-embodying, and world-implicated, it cannot have an authoritative, public role in ordering common life. Defined as a private cult claiming no authority over anything but its own private doctrines and practices, perhaps the Obama regime might concede the Church and its institutions the right to its rather bizarre and barbaric proscription against “responsible sexual activity,” but it would never do so for a Church defining herself as the Mystical Body of Christ and demanding from this regime and all governments the libertas ecclesiae, that is, a liberty prior to, and higher and more privileged, as Dignitatis Humane makes clear, than the generic religious liberty accorded to persons, due to the Chrurch’s unique divine identity and mission.

Thanks for your replies. I think the altered versions of my quotations would suffice as counter-examples if you fleshed out a little more what you have in mind by ‘material cooperation.’ I don’t see how the Church is materially cooperative in any practices to which it objects by being forced to provide health insurance for its employees. Therefore, I don’t see how the current health care reform act requires such cooperation from the Church.

As for your example about the healthcare worker, the case is clearly more complicated than your example would admit. The expectation of becoming a healthcare worker is that you provide services that society has agreed health care workers provide. You don’t like the services, you needn’t become the sort of healthcare worker that provides the sort of services you object to. But how does this attitude of the state’s reveal that the state finally reveals its bias towards the Lockean ‘foreign potentate’ entities?

Were we to suffer the sorts of religious institutions that your examples suggest we should suffer, in order for the liberal state not to reveal its bias, we should be stuck with Churches and other institutions that could refuse services to specific genders, specific races, and specific whatever have you, simply on the grounds that a ban on such a refusal violated those institutions’ right to free exercise. Does this reveal that even the most authentically liberal state will place limits on any institutions rights with respect to the rights of others? Yes. Does such limitation evidence the inauthenticity of state’s liberalism? I’m not sure that any of your examples, or that Dr Deneen’s original post, argue unimpeachably for that conclusion.

I came here looking forward to reading this article — the title sounded important — but it took me at least a dozen clicks on the Worst WordPress Slider in the Universe in order to find the magic pixel to click that actually took me (albeit slowly) to the article. Now I’m in too foul a mood to read it. If FPR is going to insist on keeping that impossible navigation tool in the upper left, couldn’t it at least provide an alternate menu to get to the articles? Or is it done on purpose to keep the articles hidden from the unwashed masses? (I just had a long soak in the tub, if that makes any difference.)

You are neither a doctor nor a woman, nor, I believe, the father of daughters. Your statements about the Pill’s medical benefits come entire from your own ignorant imagination. I had endometriosis as a teenager in the 70′s, when doctors presumed that the only women who suffered from that were dirty sluts who had the gall to get an education and a job instead of doing their womanly duty of scrubbing floors and squeezing out babies annually until they died before troubling their husbands with the sight of a few extra pounds or grey hair, like good dogs, er, wives. The Pill was the basic treatment then, as it is now. Thanks to the fact that my mother was into facts, I got treatment and saved my fertility. I have two sons, mostly because I was on the Pill and therefore suffered no damage to my uterus from my condition. Also, I stopped having menstrual cramps so bad they required emergency room visits and pain shots.

I now realize that FPR is not actually about human societies but a site where a bunch of men can fantasize about a world where “girls” know their place, which clearly is not here.

Mr. Schroeder,
I wasn’t calling you a coward. You’re just a liberal, and as such you deserve some credit for speaking up here. I was talking about go-along-get-along types who breathed a sigh of relief at the proposed compromise and said “Well, we did everything we could, glad that’s over.” Sorry I ruined your day, though.
Gene Callahan had a good response to this idea of liberalism as the impartial judge:http://gene-callahan.blogspot.com/2012/02/liberal-illusion.html

Dr. Esolen,
I read your old essay “The Dragon of Choice” (linked to recently from this site) just after writing about the duty to conscience above. It was just what I needed.

Mr. Kozinski
When I read something like this:
“If religion is private, idiosyncratic, and otherworldly, not public, truth-embodying, and world-implicated, it cannot have an authoritative, public role in ordering common life.”
I have to wonder what you want. You are setting up a dichotomy by using words in funny ways. Religion is private only in the sense that the government isn’t involved with it (the ways that it enforces that principle are pretty demented, but leave that aside for now), not in the sense that it has no authority over believers or a public role in ordering their lives. Or do you subscribe to the theory that all power flows from the barrel of a gun?

“If FPR is going to insist on keeping that impossible navigation tool in the upper left, couldn’t it at least provide an alternate menu to get to the articles?”
I would agree. There is a reason why many call Flash player Fla-shit.

Actual medical evidence regarding the importance of birth control in general, and the Pill in particular. The second article is Wikipedia, which is not authoritative, but it has a long list of scholarly articles at the bottom supporting the assertions of medical benefits. The only people who don’t think birth control is important are a bunch of old, celibate men.

Finally, only in the fantasy world inhabited by the Catholic hierarchy and Tony Esolen were women respected for our abilities and intelligence before 1968. The obvious fact that women have achieved enormous gains in education and employment since 1968 should, but won’t, put to rest the argument that lack of birth control makes men acknowledge women’s abilities more. Only for people who define “respect” for women entirely as “believe women never want to have sex, ever, at all” have the last 50 years demonstrated a reduction men’s “respect” for us.

Thanks for the article. We need to remember that it is not just anough to defend ourselves in court, but we must also proclaim the gospel. “In season and out”, as they say. This is a great opportunity, a “teachable moment”. (Last sunday was the first time I’ve heard a sermon on contraception in 40 years.) (Ten years ago, when the pastor had to speak on pedophile priests, was the first sermon on sex I’d heard in 25 years.)

@ Karen
Catholic teaching (following Jesus) calls us to an extremely radical conception of human sexuality. Namely, it teaches that human sexuality is an expression of a higher purpose, that of creating new human life.

Christianity therefore has the (very difficult) teaching that sexuality is reserved for men and women in matrimony who are oriented toward life.

Birth control erodes this highly sublime conception of sexuality by allowing men and women (married or not) to treat sex as a form of mutual self-gratification. It cannot occupy as special a position in the rank of human activities after that. It becomes like a hand shake.

And that’s what sex is today in our society–shaking hands.

P.S. I am a male, but I am also married. So your ad hominem against priests is beside the point

Aaron writes: “I don’t see how the Church is materially cooperative in any practices to which it objects by being forced to provide health insurance for its employees. Therefore, I don’t see how the current health care reform act requires such cooperation from the Church.”

Here’s how: the government is banning the Church from excluding contraceptions from the policies the Church offer to its employers. And in the case of self-insured Church entities, which is a fairly large number of them, the mandate’s accounting trick can’t be applied, since there is no “insurance company” involved.

Remember, the HHS mandate does exempt “houses of worship,” which means that it implicit acknowledges that the mandate does violate religious liberty. So, the question then is whether Church entities, such as hospitals, universities, charitable organizations, etc., are as “religious” as their ecclesiastical stewards understand them to be. And now we are at a point raised by Patrick: is “religion” a strictly private activity, no different in kind, though perhaps in degree, from matters of taste and other objects of personal satisfaction? Or does religion, or “true religion” as St. James would put it, involve the “care of widows and orphans.” Let us not forget that at the Last Judgment–as articulated in Matthew–the difference between the sheep and the goats is what they did and didn’t do, though their “private beliefs” were exactly the same. So, for the religion of Jesus, the privation of one’s faith may actually serve as a catalyst for eternal damnation. In that case, the Obama administration’s understanding of religion’s meaning excludes the religion of Jesus. But the religion of Jesus is a paradigm case of a religion. Thus, this understanding of religion must be false, since we know that the religion of Jesus is a religion.

Karen writes to Professor Esolen: “You are neither a doctor nor a woman, nor, I believe, the father of daughters.” If he were a woman, a doctor, or a father of daughters, Karen, you would still reject his argument. On the other hand, if he remained a man, a literature professor, and father of just sons, you would applaud his post if he offered arguments congenial to your position.

So, at the end of the day, your observations about Professor Esolen are have no relevance to your case. Why on Earth, then, do you even raise them?

“Religion is private only in the sense that the government isn’t involved with it (the ways that it enforces that principle are pretty demented, but leave that aside for now), not in the sense that it has no authority over believers or a public role in ordering their lives”

The Church in a Lockean regime doesn’t really have a public role in ordering its members’ lives, for public life is the realm of this world, the temporal, the political, and here the Lockean regime has an ordering monopoly, by definition. One might argue that we don’t have a purely Lockean regime, and that’s true, but what other principles does the regime accept in its use of coercive force in the public square? Surely not principles that presupposes anything but a de-politicized role for religious discourse, truth and practice. Rawls has won here. But what could an alternative be that avoids infringing on the religious freedom of others? The first step to answering this is break our political imaginations out of the dialectic of pure Lockean pluralism, on the one hand, and theocratic totalitarianism, on the other. These are not the only options.

Moreover, there’s an implied and false dichotomy between “religion” and “politics” in American public discourse, with religion defined publicly and legally in an ideological way as otherworldly and publicly non-authoritative, which keeps it from having any real influence over political life, and politics defined as somehow separate from this otherworldly religion and in charge of all matters “of this world.” As Cavanaugh and Craycraft have shown, this has only served to make the state’s claims and use of power incontestable. One simply must read William Cavanaugh on this, especially his critique of Maritain’s political theology in his wonderful “Torture and Eucharist.”

Catholics can and must believe that the Church orders both their souls and bodies, with cooperation of the political authorities, a la, Aristotlean political habituiation, but when the rubber hits the road, the Lockean regime demands that we give over our bodies to the state, and on its terms. This is the HHS mandate in a nutshell. Those who disagree are left in the position of “protester,” easily managed by the Regime, a la, OWS. The Church loses its ability to discipline both body and soul in the Maritainian/Murrayian/Lockean American regime, in spite of its members desire to have it discipline them so.

The HHS mandate is just making this implied premise explicit. “Health” is the perfect Lockean category in which to see this. Here one must make a decision to accept the regime’s definition of health, as it did before with “religion,” or reason’s view and the Church’s view. But do we really have a choice? Who gets to make the decision here? If we don’t like the regime’s decision, we can protest and make noises, but the Regime sees these things as sub-political sounds coming from the “background culture,” just how it looked at Occupy Wall Street. Even though the Church has a moral authority over the state on matters of natural law, it can’t employ this authority effectively, even among Catholics (note the mass use of contraceptives among Catholics) but must couch its terms in a Lockean way. It would be one thing if all Catholics recognized their own Church’s authority, but I fear that years of habituation in the Lockean regime unconsciously teaches them to see the Church the way the regime sees her. One might fault the Church leaders for neglect of their flock and lay people for just being bad, ill-informed, and disobedient Catholics, but is there not also a political cause of this apostasy?

One might argue that this is just the way it is in a pluralistic regime, and there is nothing one can do about it short of religious imposition and theocracy, but I beg to differ. This is not how the Church sees the situation, if you read carefully Leo XIII through Benedict XVI. What to do about this situation is something I have written about in my book, but it’s not practical enough. I personally don’t know how to think about all this in practical terms.

The first step in doing so is in realizing the precise nature of the status quo, and then looking at it in light of the ideal situation, an ideal that is not simply utopian and impossible. If it were impossible, then the Church would be teaching us to ignore the teachings of Leo XIII, and she has never revoked the objective duty of all political orders to recognize the social rights of Christ the King. Of course, conversion is the first step to such a recognition, and it’s a sine qua non.

In the meantime, we must work with what we have to promote the common good within the limits imposed by the situation, but we won’t do good work when our minds are locked in a Lockean paradigm, which I fear they are for many of us. Getting out of the Cave is the one thing most necessary now. Obama, in spite of his intentions, is helping Catholics and other Christians to do just this.

Mr. Kozinski,
That was really confusing. I don’t think we disagree. Mass conversion would, indeed, make this alot simpler. My mind is not locked in a Lockean paradigm (though I will admit, it only recently escaped, helped along by FPR and others), and I don’t think arguing against this latest travesty on the legal grounds available means you are. I agree that the clarity provided here actually helps our cause.

I largely agree with this article as far as it goes, but it is only part of the story. Deneen argues that the bishops’ appeal to “conscience” is an adoption of the very liberal mindset behind the mandate in the first place. But what is missing from Deneen’s story is that Catholics were talking about conscience long before there was such a thing as liberalism. Of course it would be a mistake to equate this Catholic view of conscience with the liberal view, but the recognition of the place of conscience in Catholic thought complicates Deneen’s communitarian conception of that tradition.

Since Deneen draws on Aquinas, it is appropriate to look at what Aquinas says about conscience. Conscience is a judgment of reason about what is good, drawn from our innate awareness of basic moral principles, in a given situation. Because it is an act of reason, Aquinas concludes that one must follow one’s conscience, since to do otherwise is to will what one’s reason has concluded is evil, and therefore, in one sense, to will evil. Although in some ways similar to a more liberal view of conscience, there are important differences. First, conscience is not an act of the sovereign will, but of the reason, operating from objective principles originating from outside itself. Second, although Aquinas says we must always follow our conscience, the conscience can be erroneous.

Therefore, although Deneen is certainly right that we require community (law, culture, religion) for flourishing, Aquinas also maintains an important role for individual judgment. This individual judgment arises from God’s illumination of the human intellect, and therefore retains a certain autonomy from the community’s traditions, even if it is also mediated through them.

Aquinas’s treatment of conscience and the community is underdeveloped. However, he does talk about the relationship between conscience and human law. He states that when human law is unjust, it does not bind in conscience. It would be logical to conclude that the judgment of whether a law is just or unjust is itself an act of conscience, since no authority other than the human reason could ultimately make that judgment for a person.

However, we would probably say that Aquinas falls short for not recognizing this, by not seeing the full implications of his teaching on erroneous conscience for political thought. For example, Aquinas believes that the state has the authority to punish heretics for their beliefs, regardless of their sincerity. Aquinas assumes that the political community has a sufficiently unified conception of the good, and that this conception is obvious enough, to justify punishing those with differing judgments on the good as threats to the community.

But of course we live in a society characterized by widespread disagreement on the good (and even by the denial that the question even matters). I think that Deneen is right that we should avoid going to one extreme by adopting the liberal understanding of conscience at the expense of seeing the community as a means of fulfilling the human good. But on the other hand, it would be a mistake to go to the opposite extreme of denying the important role that individual conscience has played in the Catholic tradition.

Of course, conscience also has an important tradition within Protestantism, but I will leave that to others.

I personally don’t know what to do about the liberal democratic, pluralistic nation-state. It’s just political reality, neither totally ideological nor ideal. MacIntyre is not altogether consistent on the issue of the moral character and duty of the nation-state. On the one hand he says it’s like an amoral monster masking itself as a sacred authority, and asking you to sacrifice for and to it, like “dying for the telephone company.” On the other hand, he approved of the disabilities act passed a while ago because it helped the common good. He also counseled in 2004 that we shouldn’t cast a vote for either candidate. I don’t know what to do with this tension. All I can say is that one must recognize that moral truth and authority, not merely rights talk and majority vote and elite will, should govern political life and legal decisions. It would seem that this could only occur in tradition-constituted polities of much smaller scale. As it is now, the right to subsidiarity is precluded and betrayed by the huge Federal government and bureaucracy. NDAA and HHS are just the beginning of more and more severe preclusions and betrayals. The only way a nation-state as big and complex as the United States could govern is by ideology and corporate interests. Right now, it’s also beholden to the interests of a foreign country. And this is precisely what we have.

The point is that such a liberal machine can’t govern in light of a genuine common good because it can’t embody and know one. The most it can do is govern as an alliance, but it refuses to limit itself to this. Nisbet’s Quest for Community is essential reading on this, as well as Kirkpatrick Sale’s work on polities of scale and, of course, MacIntyre and Cavanaugh.

Once these truths are recognized, then we can proceed reasonably to try to make things better. There is just not enough people who recognize this, or if they do, they are cowed by the ruling class and its pressures and propaganda to remain silent about it. OWS. I wonder how the American Bishops would proceed if they understood these MacIntyrean truths. Here’s one Bishop who definitely gets it, but he’s not North American: http://www.thedivineconspiracy.org/Z5205F.pdf

Dineen’s article reminds me of Newman’s statement that “conscience has rights because it has duties.” The Modern Liberal State will allow us our rights of conscience in spades, as long as we don’t take our duties of consience too seriously.

Mr. Thaddeus Kozinski is quite right to suggest that the current situation seem intractable. The very excellent essay he linked highlights the direness of our predicament. Nevertheless, there are responses. David Bentley Hart suggests one at the end of Atheist Delusions:

“Perhaps here, however, the history of Christian antiquity offers a lesson which Christians might derive some comfort. It was precisely as Christianity was on the verge of assuming political and social power, during the days of the final, ineffectual persecutions of the church, that the movement of Christian monasticism began to flower in the Egyptian desert; and, after the the conversion of Constantine, the movement grew at a remarkable rate. . . . It was from them that another current opened up within Christian culture: a renunciation of power even as power was at last granted to the church, an embrace of poverty as a rebellion against plenty, a defiant refusal to forget that the Kingdom of God is not of this world. . . the desert fathers carried the Christian revolution against the ancient powers with them into the wild, to renew the struggle on the battleground of the heart. And this, I think, might be viewed as the final revolutionary moment within ancient Christianity: its rebellion against its own success, its preservation of its mst precious and unadulterated spiritual aspirations against its own temporal power (perhaps in preparation for the day when that power would be no more), and ts repudiation of any value born from the fallen world that might displace love from the center of Christian faith.

It may be that ultimately this will again become the proper model of Christianity in the late modern West. I am not speaking, of course, of some great new monastic movement. I mean only that, in the lands where the old Christendom has mostly faded away, the life of those ancient men and women who devoted themselves to the science of charity, in willing exile from the world of social prestige and power, may perhaps again become the model that Christians will find themselves compelled to emulate. Christian conscience once sought out the desert as a shelter from the empire, where those who believed could strive to cultivate the pure eye (that could see all things as gifts of God) and the pure heart (that could receive all persons with a generous love); not a very great deal of Western culture threatens to become something of a desert for believers. . . . Innumerable forces are vying for the future, and Christianity may prove considerably weaker than its rivals. This should certainly be no cause of despair for Christians, however, since they must believe their faith to be not only a cultural logic but a cosmic truth, which can never finally be defeated. Even so, it may be the case that Christians who live amid the ruins of the old Christendom–perhaps dwelling on the far-flung frontiers of a Christian civilization taking shape in other lands–will have to learn to continue the mission of their ancient revolution in the desert, to which faith has often found it necessary, at various times, to retreat.”

If I may be as so bold as to add to this exhortation, this model did not originate among the desert fathers. The apostles understood the Church as an ekklesia set against the empire. Perhaps it is time that we treat the modern empires of the nation-state and the idolatrous worship of nation as the same. Render onto Uncle Sam what is Uncle Sam’s, and unto God the things that are God’s. Do this by forging social and political enclaves apart from the state. Obey the law where it is just, but stand against the state’s attempt to monopolize political and social life. Undoubtedly, such a challenge would lead to the testimony of martyrdom — whether by death, confiscation, or imprisonment — because this operates to totally undermine the legitimacy of the empire, a challenge the Romans realized, which is why they responded with force. But this didn’t work then and it won’t now if Christians embrace the rhetoric of the gospel: not the rhetoric of violence that attempts to seize the reigns of the state (the Protestant religious right is a sad story of how this ends), but a rhetoric of peace that lives the truth and pays the price.

Of course, Mr. Kozinski also identifies the problem with this approach: too many Christians have been domesticated by liberalism and conflate state-worship with God-worship. This is the unspoken heresy of our times, where Christianity becomes a powerless set of personal beliefs located in “conscience,” a “religion,” and where the way of life pursued is that of the American dream, not that of the cross. But if we were to overcome this, the witness of the Church would be undeniable.

I want to make a clarification here: I myself am not in principle against using pragmatic, more political-than-metaphysical arguments and tactics that get the moral job done morally, but the problem I wanted to underscore is what those who tend to use these arguments believe they are doing, and ask: In light of which bigger principles and picture?

If they understand the bigger picture and principles, then such a strategy can be prudent. But if they don’t, it can be disastrous. I am only trying to fill out the bigger picture, in a political culture that, as MacIntyre has pointed out, is essentially liberal–with radical liberals, liberal liberals, and conservative liberals. But only liberals, with those who are outside of liberal thought and practice categories relegated to the margins and, well, censored, for all the talk of the free marketplace of ideas.

Perhaps the Bishops know more than they are telling, but perhaps its time to start saying more about the big picture and underlying principles, even when, or especially when, these can serve to unmask a liberal ideology that suffocates Christian and traditional truth. Perhaps it can help expand the public political imagination better than short-term pragmatic discourse ordered to solving problems, though quite grave, as they come and will come up.

Mr. Thaddeus Kozinski is right on this point as well, for we are sheep amongst wolves and must be as shrewd as snakes while innocent like doves. We have our example in the Apostle Paul, who made use of his Roman citizenship when it became prudent.

“The apostles understood the Church as an ekklesia set against the empire.”

While I greatly appreciate JA’s insightful & erudite contributions to this and other threads, I must say that this claim is at best an oversimplification. If not, wouldn’t it suggest that the neopagans are right — that St. Paul was two-faced and treacherous in making use of Roman citizenship?

I really haven’t enough learning or time to contribute to the question. Nonetheless I suggest that the problem is *this* empire (of liberalism), rather than empire as such.

“It would be logical to conclude that the judgment of whether a law is just or unjust is itself an act of conscience, since no authority other than the human reason could ultimately make that judgment for a person.”

Not really. Conscience pertains to individual prudence while judgment about the justice of a law pertains to political or regnative prudence.

“However, we would probably say that Aquinas falls short for not recognizing this, by not seeing the full implications of his teaching on erroneous conscience for political thought. For example, Aquinas believes that the state has the authority to punish heretics for their beliefs, regardless of their sincerity. Aquinas assumes that the political community has a sufficiently unified conception of the good, and that this conception is obvious enough, to justify punishing those with differing judgments on the good as threats to the community.”

Of course he assumes that, he was living in Christendom. He didn’t ask the question of what should be the case in a non-Christian polity. Heretics are guilty not of having a different opinion but for the sin of rejecting the virtue of Faith. Of course this assumes that a heretic can be determined to have once been a sincere believer.

Mr. Salyer is correct that my claims lacked some of the nuance required of any such comparison. I did not mean to suggest that the relationship of the early Church to Rome is precisely parallel to the relationship of the contemporary Church to the modern nation-state.

For a better comparison, I can suggest William Cavanaugh’s essay, “Messianic Nation: A Christian Theological Critique of American Exceptionalism,” published in “Migrations of the Holy: God, State, and the Political Meaning of the Church.” An earlier version of this essay can be found online at the link below:

Only individual human beings , one at a time, are capable of understanding anything, and practicing right life.

Neither is there any such thing as a uniform Christian understanding, especially as there are now well over 30,000 different and differing Christian denominations, sects and sub-sects in the world, all competing for market share in the market place of religious consumerism.
WHAT’S IN IT FOR ME is the now everywhere motivation for EVERYONE who presumes to be religious, including self-righteous conservative Catholics.

Perhaps the Catholic Church should recover its concept of “public morality,” once commonly invoked. As far as I know, it is only recently mentioned in Paragraph 2210 of the Catechism of the Catholic Church. The phrase strikes at the heart of the privatization of religion, and drives home the Catholic position that this issue isn’t like “Fish on Fridays” but one of natural law.

When Catholic institutions are being forced to subsidize contraception for their unmarried students, why shouldn’t they object that this will likely result in greater tolerance for fornication and for activities which weaken future marriages?

pb: “Conscience [for Aquinas] pertains to individual prudence while judgment about the justice of a law pertains to political or regnative prudence.”

I don’t know how you can say that when Aquinas treats this issue under the question of “Whether human law binds a man in CONSCIENCE?” (I-II, q. 96, a. 4). His answer is yes, but only if the law is just; if it is unjust, then “such laws do not bind in conscience, except perhaps in order to avoid scandal or disturbance, for which cause a man should even yield his right.” Clearly conscience plays a role in deciding whether or not a law should be followed, which would have to include a judgment on its justice.

Also on what basis do you make your claim that conscience does not play a role in “political prudence”? Aquinas writes that prudence “applies universal principles to the particular conclusions of practical matters” (II-II, q. 47, a. 6), and political prudence is the part of prudence primarily dealing with the rule of superior to inferior, and secondarily to obedience of inferiors to superiors. Aquinas likewise defines conscience as “knowledge applied to an individual case” in issues of moral judgment (I, q. 79, a. 13). I don’t see anything in Aquinas’s definitions that would exclude conscience from the exercise of political prudence, and hence from decisions about whether laws are just or not. The exercise of prudence of any kind involves judgments of conscience.

pb: “Of course he assumes that, he was living in Christendom. He didn’t ask the question of what should be the case in a non-Christian polity. Heretics are guilty not of having a different opinion but for the sin of rejecting the virtue of Faith. Of course this assumes that a heretic can be determined to have once been a sincere believer.”

Yes, I was assuming readers were aware that Aquinas lived in the Middle Ages. Also, it is a subtle difference, but Aquinas does not say that heretics are punished for rejecting the virtue of faith, but because they are a threat to the faith of others. He also makes clear that their execution is a matter for the political authorities, signifying that he sees this threat to others’ faith as a threat to the social order, as well. I am inferring from this that Aquinas sees the heretic’s disagreement over matters of faith as also including a disagreement over the the common good, as I stated in my original post.

My overall point was that Aquinas’s thoughts on conscience stand in tension with his judgment that heretics can be executed as a danger to the common good, and that if we are going to draw on Aquinas as an aid in our current predicament, we should be aware of this tension. A one-sided focus on the communal good, such as in Deneen’s article, raises questions, such as those of other posters, about its feasibility as a real strategy given the very different circumstances in which we live. In these circumstances, we should probably give greater weight to conscience than Aquinas does, while at the same time maintaining the importance of a shared conception of the good, and therefore I think the bishops are entirely faithful to the Catholic tradition and not capitulating to liberalism, as Deneen suggests.

Gentlemen,
Can no one address Karen’s concerns except to say they are irrelevant? (I do concur that the feminist attack speech she later used–and ONLY that–is irrelevant.) I know that someone besides me read the first paragraph of her first posting, because that person quoted it. Correct me if I think that she raised a considerable instance of the Pill being used therapeutically–and successfully so–but not to prevent conception. According to Rep. Eleanor Holmes Norton and the young woman attending Georgetown’s law school who was excluded from testifying before a Congressional panel on the issue under discussion here (heard on Democracy Now!), there are several noncontraceptive, therapeutic uses for the Pill and perhaps similar drugs. Has there been any attempt to accommodate noncontraceptive prescription of the Pill as an acceptable adaptation of the policy? If so, and it has been rejected, why was it rejected? Surely the Church does not object to the alleviation of suffering through noncontraceptive use of these drugs? If it does, I’d like to know what its argument is.

Re: The Church in a Lockean regime doesn’t really have a public role in ordering its members’ lives

This is badly stated– the Church IS its members. Ideally there should be no division between the Church and those who are in and of it. That your formulation is possible and makes sense is a tribute to the ill effects of clericalism, by which the Church consists of it hierachs and everyone else is chatel to them.

Re: Even though the Church has a moral authority over the state on matters of natural law

I can’t believe someone is still claiming the Church has authority over the state. Wow– I thought Innocent III was centuries dead and Unam Sanctam was considered an embarrssment best left undiscussed. What next– Barak Obama should be kneeling in the snow at Canossa? How about this: the Church has no authority outside its own boundaries (i.e., its people). Just as the US government has no authority in any place where US sovereignity does not obtain.

I second Mr. Olsen …
I’m not a Catholic, nor much of a religious person in general. I do, however, sympathize with the Church’s position that it should not be forced to provide something which violates its teachings. And I understand Mr. Deneen’s argument that the Church’s response “has (perhaps necessarily) been framed in dominantly liberal terms that give it a chance of receiving a hearing in today’s public sphere and within its Courts.” I think the parenthetical in that quote sums up my feelings on that — how else could it frame its response and expect to get anywhere?
So I realize this article’s point is much more than merely “artificial birth control is wrong.” But Mr. Esolen did bring that argument into play when he made a pretty forceful assertion that the pill is good for nothing except contraception. Karen’s response may have been hostile, but it raised some legitimate counterarguments to that assertion, and nobody here seems to be interested in addressing what she had to say.

“How about this: the Church has no authority outside its own boundaries (i.e., its people). Just as the US government has no authority in any place where US sovereignity does not obtain.”

Your view of the Church is as one who doesn’t know who She is. It’s a Lockean perspective. Does Jesus Christ have no authority other than what men recognize that He has? That’s not how He speaks in the Gospels, and the Catholic Church is the extension of His body in space and time.

Patrick, this is a thoughtful piece. But I wonder about a very basic assertion, which is:
“Catholics begin with a fundamentally different understanding of the human person than liberalism. We are not by nature “free and independent”; we are, rather, members of the Body of Christ. ”
My question is, what kind of society do “we” have when it includes people who are not members of the body of Christ? As much as I don’t care for liberalism, I’m not sure we have a better option for harmonizing the rival claims not just of theists and atheists, but also for the multiple strains of monotheism (including Protestants and Roman Catholics).
I don’t mean to suggest that the weaknesses of liberalism are not evident in this policy. But I can also imagine a liberal society, say the United States in 1910, when this kind of federal overreach is not even on the table.

Very interesting discussion. But since someone wants a response for Karen I will give one since I AM female and a doctor (though I don’t have any daughters–though many nieces.) The Church has no problem with hormones being used to treat a disease such as what she was suffering from. There are several diseases that hormones of varying types and natures are useful to get the body back to health. But this is NOT contraception (the deliberate prevention of a pregnancy or killing of the embryo). But hormones are powerful drugs! Giving it to masses of healthy women have led to increases in various types of cancer, infertility and massive increases in the prevalence of STDs. It has also led to increases in strokes, heart attacks, gall bladder problems and death (feel free to read some of the fine print). Not to mention that most contraception are abortifacients.

I know many who follow the Church’s teachings on contraception and put God as the center of their marriage and God’s will as the defining motivation in their lives. Paragraph 21 of Humanae Vitae offers some very valid benefits for families who follow those teachings. All the people I know using NFP have received those benefits in abundance. It is why studies show that people who practice natural family planning have a divorce rate of less than 1%.

I have never used contraception in my life personally but a friend did. One day, she looked at what was in her hands and she was washing down her hormone pills with her ‘organic’ ‘hormone-free’ milk. She thought “Something is wrong with this picture.” She chose the Creighton method initially because it was ‘natural’ but she and her husband have received all the benefits. Their marriage is SO much stronger and they have become outspoken proponents of this method and prophets of the blessings that they have received. If you are interested in reading the book, their story has been published in a collections of stories of people who have adopted NFP and it tells of the positive changes it has made in their lives.

As Catholics we are called to question every aspect of our lives against the standard of–do we love God–do we trust God–are we doing His will? Are we putting on the self-sacrificing nature of Christ? Contraception is a whole lot of No’s.

But then us Catholics have always been called to be counter-cultural. We are ‘in’ the world but we are not ‘of’ the world.

In other words, why should we privilege the state’s definition of the church over the tradition of the church that spans 2,000 years? Why is the presence of hierarchy in the church, which exists in every single human institution, an arrangement that leaves the laity “chatel?” Why should the Protestant model of the church as a free association of like-minded individuals, rather than the body of Christ, be imposed upon it? Why should we hold to an artificial and recently invented religious/secular distinction over the organic unity of human life?

Further, I don’t know what tradition you indwell, but if it is some form of Christianity, why are you advocating on the behalf of a view of sovereignty that allows the state to monopolize public space that is absolutely foreign to Christian thinking? When premodern Christians called Christ their “Lord and Savior,” this was understood to have deeply political implications, as is the early and biblical understanding of the church as an [i]ekklesia[/i]. In other words, why do you allow John Locke to override the testimony of the Apostles and the Saints?

If you have difficulty believing this, I similarly have a difficult time believing that people actually still think that the state is a neutral arbiter in civil society and that the religious/secular distinction is anything but a regime of knowledge and power purposefully designed to marginalize the church and colonized peoples.

I agree with a number of your points, but the idea that birth control has led to “a rise in infidelity and illegitimacy” gives me pause. Perhaps illegitimacy given its specific definition, but infidelity. There was no shortage of illegitimate children before birth control and I doubt more so infidelity.

Although liberalism advocates a neutral stance most people who take that philosophical stance believe they are right and that what they believe is right for everyone. Most proponents of birth control believe it should be legally available to all as a matter of what is right, just, and good. So liberal or not, in their frame of mind they are somewhat, I guess “religious” in that respect. Opponents of HHS cannot assume that those on other side don’t also fervently believe that what they believe is what is universally right and good.

Interestingly, more and more secularists-atheists-agnostics are starting to realize the inescapably religious nature of politics, depending as it does on a conception of the Good and of the human person.

Thank you, Ruth, but you don’t really address my questions, which I will try to put more directly. Has there been any attempt to allow for noncontraceptive therapeutic use of the Pill in the policies proposed by the Obama administration? Since the objectors to a religious exemption from employer provision of contraceptive drugs are making noncontraceptive therapeutic use the leading edge of their counterattack, is it possible that a compromise position can be reached that will allow noncontraceptive prescription but disallow contraceptive prescription? If opponents of the policy are insisting on a total prohibition of the prescription of abortifacient therapeutics including for noncontraceptive uses, what is their moral reasoning for such a position? I am sympathetic to exemption for contraceptive use but not for noncontraceptive use, as in Karen’s case.

from its earliest articulation, liberalism has set its sights on the rout of Catholic Christendom. Liberalism was fundamentally animated by a deep philosophical and theological objection to Catholicism – and, until recent times, vice-versa.

You never said a truer word, and on that ground, I am against, have always been against, and always will be against, the claims of the Roman Catholic Church. This is not about freedom of religion. This is about the Vatican’s claim to jurisdiction over the civil order. Constitutional republican government HAD to set its sights on the rout of the Vatican’s secular power (until the Pope shall indeed have no divisions), because the power of the church has always been against republican rule by the people as sovereign.

I part company from both liberals who want to imposed a “secular good” and conservatives who claim that religion is somehow being denied its due when it can’t promote its own vision of “the Good” through the medium of the state. Not only is each citizen free to worship in whatever manner we each choose (privately in the sense of within the chosen corporate religious body, but that can be and should be quite public), but each faith is indeed quite free to offer its vision in the public square.

What no religion may do in our republic, thank God, is to impose its vision on others. The HHS regs are about allowing individual employees to make their own choices about how to use their medical coverage. That is not an imposition on employers. To the extent that employers pay for medical coverage, it is part of the compensation package, not a benevolent gift.

I just think it’s funny that people are using the concept of sovereignty as a secular reality against Christianity when the very origin of the modern concept of sovereignty can be traced back to nominalism, a quasi-heretical development in late scholasticism.

I don’t know how you can say that when Aquinas treats this issue under the question of “Whether human law binds a man in CONSCIENCE?” (I-II, q. 96, a. 4). His answer is yes, but only if the law is just; if it is unjust, then “such laws do not bind in conscience, except perhaps in order to avoid scandal or disturbance, for which cause a man should even yield his right.” [1]Clearly conscience plays a role in deciding whether or not a law should be followed, [2]which would have to include a judgment on its justice.

As conscience is the application of knowledge to an individual case/particular action, it is similar to [individual] prudence but not identical with it, since prudence (and the practical syllogism) conclude in the particular action. If there is a question about the validity/justice of a law, I would maintain that the judgment that resolves it is not the same as the act of conscience (but a “higher-level” judgment – i.e. prior by nature in deliberation).

It may be that some judgments about the justice of a law are are relatively easy to make. We may know that a law requiring that worship be given to the emperor is unjust, for example, because it goes beyond the competence of a human authority (II II 104, 5; I II 96 4 ) or because it opposed to the Divine Good (or to a Divine Law) (I II 96, 4). It requires less of subjects to be able to judge that a law is unjust on account of the second reason than on account of the first. So in some cases, Faith, synderesis, knowledge of a community’s laws, or moral science, etc. may be sufficient for judging some law is unjust. But it seems to me that in order to be able to judge some laws, one must have in some degree the regnative or political prudence proper to those who rule.

At any rate, I would not say that judging the justice of a law is the same as the act of conscience, for Aquinas at least, even if the latter requires the former.

Plus, those who would dissent in the name of conscience should be prepared to present (and examine) their reasons.

Also, it is a subtle difference, but Aquinas does not say that heretics are punished for rejecting the virtue of faith, but because they are a threat to the faith of others.

I wasn’t talking about the conditions for punishing them with death, but the nature of the sin. If their form of unbelief wasn’t somehow morally wrong in the first place, if it was just a sincerely held opinion that did not involve the will, it wouldn’t warrant punishment in the first place. So when Aquinas says that they should be executed in order to protect others, he is first stating capital punishment should be applied only after sufficient mercy has been shown and they are a source of harm to others, not that death is deserved only if they threaten the salvation of others. (As he says in II II 1, 3 on account of their sin alone they deserve both excommunication and death.)

I am inferring from this that Aquinas sees the heretic’s disagreement over matters of faith as also including a disagreement over the the common good, as I stated in my original post.

The dispute would be about the supernatural common good and how the political common good is ordered to that.

Moreover, in that article at least Aquinas does not explicitly mention the evils of social disruption and unrest but rather the spiritual harm that they cause. There may be a reason for that; I’ll have to think about it. Hence –

My overall point was that Aquinas’s thoughts on conscience stand in tension with his judgment that heretics can be executed as a danger to the common good, and that if we are going to draw on Aquinas as an aid in our current predicament, we should be aware of this tension.

I’m not seeing any tension since what he wrote pertains to Christian polities and his understanding of the act of faith and how it is an infused virtue given upon baptism. After Aquinas, the distinction between formal and material heresy was made more explicit but such a distinction can be inferred in his moral theology. Those who are material heretics do not have the sin of heresy, while formal heretics do.

OK. I give up. I suppose no one else contributing to this train of comments can answer my questions directly. Is that because no one else is interested in compromise, the sine qua non of practical politics?

Christ may be better, but Christ is not on earth writing statutes, and come to think of it, he didn’t write any statutes when he was on earth either.

James Madison wrote in The Federalist Papers “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

The bishop of Rome is a man, and not an angel.

(Earth to Lindley… tithes are purely voluntary since the disestablishment of the Roman Catholic Church).

Theodoret: Justice Scalia has famously staked his judicial reputation doing the exact opposite of “this” and affirming, for purposes of interpreting the Free Exercise Clause, what Prof. Deneen is arguing — see Employment Division v. Smith, and his concurrence in City of Boerne v. Flores — and he has been jackhammered by both “right” and “left” for it.

It is far past time for the believing church (Catholic and non-Catholic) to revive the moniker of “church militant” and actively and aggressively oppose any and all attempts to subvert our beliefs. We must “speak truth with love” while refusing to back down or compromise on a single thing we hold sacred. At the same time, there’s nothing wrong with using shame and guilt on our opponents (just like your mama and grandmama used on you) like the Left is more than willing to use on us — although it’s phony shame and guilt. And we must reject the government tactic of threatening the tax-exempt status of churches if God’s truth challenges their politics. It always has been used selectively, ignoring certain churches that delve deeply into politics while banning others from even remotely broaching the subject. The Great Commission still must be our primary focus because affecting the culture is the only way to truly change politics (doesn’t say much for us, given the past 50 years!) but if we ignore politics entirely, even whatever witness we’re allowed may soon have to be licensed. If you don’t think the Left would love to do that, you are very naive.

What a refreshing experience it is to read this lively and articulate debate. I totally agree that the religious liberty and conscience framing of the Church’s position is ultimately compromising the fundamental position on this issue. However, we need to realize that our church leaders are in a tenuous position lest we forget that they are largely bereft of followers. The facts are that the majority of nominal Catholics are not sympathetic to the Church’s position on contraception. Add to this the Church’s own sex scandals and you can see why our Church leaders have learned to adopt the counsel and language of their attorneys and public relations specialists in the face of these assaults. In fact, the Obama administration clearly believes that they can ignore the voice of the Church as irrelevant. We can only hope that they have miscalculated the latent response of the Body of Christ. This was the case in CT when the govt tried to remove the right of the Catholic Church to govern itself. The public response was overwhelming outrage. I venture to say that it was not out of loyalty to the bishops as much as an objection to govt overreaching. (Hey, this is our family fight. You can just stay out of it, thank you very much.) We are counting on the govt. committing the same error here. Sorry, sometimes it is not enough to be right. You have to be clever too.

Theodoret, as you call Madison a fool, while I see him as the wisest of the founders of our republic, I consider anyone who thinks outside the multi-dimensional Cartesian axes of Lockean precepts to have built his house upon totalitarian sand.

Further, I am confident that the leadership of any given religious denomination CAN indeed be ignored, to the extent that it stretches out a grasping claw for special favors or supremacy. Even most parishioners know the difference between faith in God and blind trust in princes.

There is an ultimate recourse for the free citizen of a republic in the teeth of a “church militant.” It is provided for and acknowledged by the Second Amendment.

Wonderful, especially the points about liberalism’s mask of neutrality, and how that mask will always slip. For more on this check out Michael Gross’ The War Against Catholicism, a study of Bismarck’s Kulturkampf of the 1870s. He argues that

“Modern liberal ideology masks a deeply authoritarian strain that can be traced to the totalizing utopian project of the Enlightenment…the liberal hatred of Catholics that culminated in the Kulturkampf was too deep, too intense, to be simply a mistake…The Kulturkampf was not due to the liberals’ insufficient commitment to their own creed. Nor was it the case that German liberals were endowed with an inadequate Enlightenment legacy. On the contrary, the German liberals who were Kulturkampfer (culture warriors) against the Catholic Church and Catholicism were passionately dedicated to their ideals and incessantly referenced the Enlightenment for inspiration and orientation…The Kulturkampf emerges in this light not as a exception to liberal principles but as the culmination of liberal demands for a modern German political, economic, social, and sexual order. Anti-Catholic intolerance was not derivative but constitutive of liberalism; it was not an ancillary expression but, on the contrary, at the core of liberalism in Germany.”

When government becomes a “need” or perhaps a divinely blessed “right” and not a responsibility, all manner of perversions creep to the fore, including a fundamental addiction to paranoia.

This is the rub of course because if paranoia is your culture’s animating principle, you will find your own government bred on this principle to be a tad overtly carnivorous. There will be no end to strife.

This much of what you say is correct: the right to conscience is not the proper argument against the HHS mandate. If you look at the First Amendment, you won’t find a right to “freedom of conscience” but a right to “free exercise” of religion. Right to conscience gets into much more confusion than free exercise does, because there is no way for me to look inside your conscience. The “freedom of conscience” claim is a Jeffersonian argument that can be found in his “Bill for Religious Freedom.” Following Donald Drakeman, I’m of the opinion that the original understanding of the First Amendment was not Jeffersonian but Washingtonian. By that I mean the state promotes religion in a non-preferential way, in order to encourage virtue and serve the common good. Promotion of free exercise of religion is a good thing because it gives religion a special exalted status in the eyes of the government; the Church would be wise to defend free exercise, although freedom of Conscience is a more problematic right

I know no one will read this, but here is a point no one seems to have made.

I am not sure I am quite convinced by Dr. Deneen’s interpretation of why Locke was anti-Catholic. Where did Locke get the idea that the Pope was a “foreign potentate?” It was not something he made up out of the wickedness of his own heart; it had been a theme of English Protestant propaganda for over a century before he wrote. The principal focus of such propaganda since at least 1570 (the year of St. Pius V’s ill-fated excommunication of Elizabeth I) had been that Catholics could not be trusted because the Pope supposedly claimed the power to release subjects from their oaths of allegiance. Locke himself gave this as his principal reason for not tolerating Catholics (rather hypocritically, since he himself supported those who renounced their oaths of allegiance to James II). He hardly cared about Catholic hospitals, which did not exist in seventeenth-century England anyway. Locke’s anti-Catholicism strikes me more as the last gasp of militant Protestantism than as the first breath of liberalism (a term not coined until over a century later anyway). And nearly all the major American founders, whatever the errors in their personal beliefs (whether Jefferson and his abridged gospels or Madison and his apparently flawed angelology diagnosed by Theodoret above), supported civil rights for Catholics.